WVC 6 B- 2 - 4
§6B-2-4. Processing complaints; dismissals; hearings; disposition;
judicial review.
(a) Upon the filing of a complaint, the Executive Director of
the commission or his or her designee shall, within three working
days, acknowledge the receipt of the complaint by first-class mail
unless the complaint was initiated by the commission or the
complainant or his or her representative personally filed the
complaint with the commission and was given a receipt or other
acknowledgment evidencing the filing of the complaint. No
political party or officer, employee or agent of a political party
acting in his or her official capacity may file a complaint for a
violation of this chapter with the commission. Nothing in this
section prohibits a private citizen, acting in that capacity, from
filing a verified complaint with the commission under this section.
Within fourteen days after the receipt of a complaint, the
Executive Director shall refer the complaint to the Review Board
created pursuant to section two-a of this article.

(b) Upon the referral of a complaint by the Executive Director
pursuant to subsection (a) of this section, the Review Board shall
determine whether the allegations of the complaint, if taken as
true, would constitute a violation of law upon which the commission
could properly act under the provisions of this chapter. If the
complaint is determined by a majority vote of the Review Board to
be insufficient in this regard, the Review Board shall dismiss the
complaint.

(c) Upon a finding by the Review Board that the complaint is
sufficient, the Executive Director shall give notice of a pending
investigation to the complainant, if any, and to the respondent.
The notice of investigation shall be mailed to the parties and, in
the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked "Addressee only, personal and
confidential". The notice shall describe the conduct of the
respondent which is alleged to violate the law and a copy of the
complaint shall be appended to the notice mailed to the respondent.
Each notice of investigation shall inform the respondent that the
purpose of the investigation is to determine whether probable cause
exists to believe that a violation of law has occurred which may
subject the respondent to administrative sanctions by the
commission, criminal prosecution by the state, or civil liability.
The notice shall further inform the respondent that he or she has
a right to appear before the Review Board and that he or she may
respond in writing to the commission within thirty days after the
receipt of the notice, but that no fact or allegation shall be
taken as admitted by a failure or refusal to timely respond.

(d) Within the 45-day period following the mailing of a notice
of investigation, the Review Board shall proceed to consider: (1)
The allegations raised in the complaint; (2) any timely received
written response of the respondent; and (3) any other competent
evidence gathered by or submitted to the commission which has a
proper bearing on the issue of probable cause. A respondent may appear before the Review Board and make an oral response to the
complaint. The commission shall promulgate rules prescribing the
manner in which a respondent may present his or her oral response.
The commission may ask a respondent to disclose specific amounts
received from a source and request other detailed information not
otherwise required to be set forth in a statement or report filed
under the provisions of this chapter if the information sought is
considered to be probative as to the issues raised by a complaint
or an investigation initiated by the commission. Any information
thus received shall be confidential except as provided by
subsection (e) of this section. If a person asked to provide
information fails or refuses to furnish the information to the
commission, the commission may exercise its subpoena power as
provided in this chapter and any subpoena issued by the commission
shall have the same force and effect as a subpoena issued by a
circuit court of this state. Enforcement of any subpoena may be
had upon application to a circuit court of the county in which the
Review Board is conducting an investigation through the issuance of
a rule or an attachment against the respondent as in cases of
contempt.

(e) All investigations, complaints, reports, records,
proceedings and other information received by the commission and
related to complaints made to the commission or investigations
conducted by the commission pursuant to this section, including the
identity of the complainant or respondent, are confidential and may not be knowingly and improperly disclosed by any current or former
member or employee of the commission or the Review Board except as
follows:

(A) Once there has been a finding that probable cause exists
to believe that a respondent has violated the provisions of this
chapter and the respondent has been served by the commission with
a copy of the Review Board's order and the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section, the complaint and all reports, records, nonprivileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint cease to be confidential.

(B) After a finding of probable cause, any subsequent hearing
held in the matter for the purpose of receiving evidence or the
arguments of the parties or their representatives shall be open to
the public and all reports, records and nondeliberative materials
introduced into evidence at the hearing, as well as the
commission's orders, are not confidential.

(C) The commission may release any information relating to an
investigation at any time if the release has been agreed to in
writing by the respondent.

(D) The complaint and the identity of the complainant shall be
disclosed to a person named as respondent immediately upon the
respondent's request.

(E) Where the commission is otherwise required by the
provisions of this chapter to disclose information or to proceed in such a manner that disclosure is necessary and required to fulfill
those requirements.

(2) If, in a specific case, the commission finds that there is
a reasonable likelihood that the dissemination of information or
opinion in connection with a pending or imminent proceeding will
interfere with a fair hearing or otherwise prejudice the due
administration of justice, the commission shall order that all or
a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct or
criminal acts contained in a complaint shall be confidential and
the person providing the information or filing a complaint shall be
bound to confidentiality until further order of the commission.

(f) If the members of the Review Board fail to find probable
cause, the proceedings shall be dismissed by the commission in an
order signed by the members of the Review Board. Copies of the
order of dismissal shall be sent to the complainant and served upon
the respondent forthwith. If the Review Board decides by a
unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
Review Board shall sign an order directing the commission staff to
prepare a statement of charges and assign the matter for hearing to
the commission or a hearing examiner as the commission may
subsequently direct. The commission shall then schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges. The commission's review of the evidence presented shall be de novo. For the purpose
of this section, service of process upon the respondent is obtained
at the time the respondent or the respondent's agent physically
receives the process, regardless of whether the service of process
is in person or by certified mail.

(g) At least eighty days prior to the date of the hearing, the
commission shall serve the respondent by certified mail, return
receipt requested, with the statement of charges and a notice of
hearing setting forth the date, time and place for the hearing.
The scheduled hearing may be continued only upon a showing of good
cause by the respondent or under other circumstances as the
commission, by legislative rule, directs.

(h) The commission may sit as a hearing board to adjudicate
the case or may permit an assigned hearing examiner employed by the
commission to preside at the taking of evidence. The commission
shall, by legislative rule, establish the general qualifications
for hearing examiners. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner
will be conducted in an impartial manner and describe the
circumstances and procedures for disqualification of hearing
examiners.

(i) A member of the commission or a hearing examiner presiding
at a hearing may:

(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and parties and otherwise take testimony and establish a record;

(2) Rule on offers of proof and receive relevant evidence;

(3) Take depositions or have depositions taken when the ends
of justice will be served;

(4) Regulate the course of the hearing;

(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;

(6) Dispose of procedural requests or similar matters;

(7) Accept stipulated agreements;

(8) Take other action authorized by the Ethics Commission
consistent with the provisions of this chapter.

(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia Rules of Evidence governing proceedings in the courts of
this state shall be given like effect in hearings held before the
commission or a hearing examiner. The commission shall, by rule,
regulate the conduct of hearings so as to provide full procedural
due process to a respondent. Hearings before a hearing examiner
shall be recorded electronically. When requested by either of the
parties, the presiding officer shall order a transcript, verified
by oath or affirmation, of each hearing held and so recorded. In
the discretion of the commission, a record of the proceedings may
be made by a certified court reporter. Unless otherwise ordered by
the commission, the cost of preparing a transcript shall be paid by
the party requesting the transcript. Upon a showing of indigency, the commission may provide a transcript without charge. Within
fifteen days following the hearing, either party may submit to the
hearing examiner that party's proposed findings of fact. The
hearing examiner shall thereafter prepare his or her own proposed
findings of fact and make copies of the findings available to the
parties. The hearing examiner shall then submit the entire record
to the commission for final decision.

(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the commission,
unless by leave of the commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.

(l) The commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their respective
representatives, and shall notify the parties thereof. Briefs may
be filed by the parties in accordance with procedural rules
promulgated by the commission. The commission shall issue a final
decision in writing within forty-five days of the receipt of the
entire record of a hearing held before a hearing examiner or, in
the case of an evidentiary hearing held by the commission acting as
a hearing board in lieu of a hearing examiner, within twenty-one
days following the close of the evidence.

(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least seven members of the commission.

(n) Members of the commission shall recuse themselves from a
particular case upon their own motion with the approval of the
commission or for good cause shown upon motion of a party. The
remaining members of the commission may, by majority vote, select
a temporary member to replace a recused member: Provided, That the
temporary member selected to replace a recused member shall be a
person of the same status or category, provided by subsection (b),
section one of this article, as the recused member.

(o) Except for statements made in the course of official
duties to explain commission procedures, no member or employee or
former member or employee of the commission may make any public or
nonpublic comment about any proceeding previously or currently
before the commission. Any member or employee or former member or
employee of the commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the commission is grounds for immediate
removal from office or termination of employment.

(p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.

(q) No employee of the commission assigned to prosecute a complaint may participate in the commission deliberations or
communicate with commission members or the public concerning the
merits of a complaint.

(r) (1) If the commission finds by evidence beyond a
reasonable doubt that the facts alleged in the complaint are true
and constitute a material violation of this article, it may impose
one or more of the following sanctions:

(A) Public reprimand;

(B) Cease and desist orders;

(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;

(D) Fines not to exceed five thousand dollars per violation;
or

(E) Reimbursement to the commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the commission for its costs under this paragraph shall
be collected by the commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.

(2) In addition to imposing the above-specified sanctions, the
commission may recommend to the appropriate governmental body that
a respondent be terminated from employment or removed from office.

(3) The commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the
enforcement of sanctions.

(s) At any stage of the proceedings under this section, the
commission may enter into a conciliation agreement with a
respondent if the agreement is deemed by a majority of the members
of the commission to be in the best interest of the state and the
respondent. Any conciliation agreement must be disclosed to the
public: Provided, That negotiations leading to a conciliation
agreement, as well as information obtained by the commission during
the negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.

(t) Decisions of the commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
only by the respondent and only upon the grounds set forth in
section four, article five, chapter twenty- nine-a of this code.

(u) (1) Any person who in good faith files a verified
complaint or any person, official or agency who gives credible
information resulting in a formal complaint filed by commission
staff is immune from any civil liability that otherwise might
result by reason of such actions.

(2) If the commission determines, by clear and convincing
evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard of
the truth or falsity of the statements contained therein; or filed one or more unsubstantiated complaints which constituted abuse of
process, the commission shall:

(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;

(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and

(C) Order the complainant or informant to reimburse the
commission for the actual costs of its investigation. In addition,
the commission may decline to process any further complaints
brought by the complainant, the initiator of the investigation or
the informant.

(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or informant
under the law.

(v) (1) If at any stage in the proceedings under this section
it appears to a Review Board, a hearing examiner or the commission
that there is credible information or evidence that the respondent
may have committed a criminal violation, the matter shall be
referred to the full commission for its consideration. If, by a
vote of two-thirds of the members of the full commission, it is
determined that probable cause exists to believe a criminal
violation has occurred, the commission shall refer the matter to
the appropriate county prosecuting attorney having jurisdiction for
a criminal investigation and possible prosecution. Deliberations of the commission with regard to referring a matter for criminal
investigation by a prosecuting attorney shall be private and
confidential. Notwithstanding any other provision of this article,
once a referral for criminal investigation is made under the
provisions of this subsection, the ethics proceedings shall be held
in abeyance until action on the referred matter is concluded. If
the referral of the matter to the prosecuting attorney results in
a criminal conviction of the respondent, the commission may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.

(2) If fewer than two-thirds of the full commission determine
that a criminal violation has occurred, the commission shall remand
the matter to the Review Board, the hearing examiner or the
commission itself as a hearing board, as the case may be, for
further proceedings under this article.

(w) The provisions of this section shall apply to violations
of this chapter occurring after the thirtieth day of September, one
thousand nine hundred eighty-nine, and within one year before the
filing of a complaint: Provided, That the applicable statute of
limitations for violations which occur on or after the first day of
July, two thousand five, is two years after the date on which the
alleged violation occurred.

Note: WV Code updated with legislation passed through the 2015 Regular Session
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